Top 3 Cases of December 2025 08 January 2026
In this series of articles, we aim to highlight 3 of the most interesting cases in our field decided in the past month. This month: recovery of possession from trespassers, paper title and adverse possession, and s.36 Administration of Justice Act 1970.
Gavin Maher v Investalet Limited [2025] EWHC 3133 (Ch)
Summary
The High Court dismissed an application under s.234 Insolvency Act 1986 for ‘vacant possession’ of various properties. Although a possession order might have been obtained in trespass proceedings, removal of trespassers was not within the scope of s.234, which enables the court to order a person ‘to pay, deliver, convey, surrender or transfer the property […] to the office-holder.’
The application was brought by the administrators of a company which owned a number of properties. The properties had been let to the first respondent, although the identity of the actual occupants was unclear. The administrators appointed new managing agents, to whom the first respondent did not pay the rent. The administrators served notices to quit, and presented a winding up petition on the basis of the unpaid rent, in the context of which this application was brought.
The High Court dismissed the application, finding that although the company was entitled to possession of the properties, it was not within the scope of s.234 to order vacant possession to be given by a trespasser. Although a trespasser has possessory title to land, that title is brought to an end when possession is given, rather than the title being acquired by the superior title holder, so there was nothing to transfer.
Why it’s important
This decision will be of practical significance to administrators seeking to recover possession of land: despite their entitlement to possession, the use of the wrong procedural route was in this case fatal to the application.
----------------------------------------------------------------------------------------------------------------
Owain Geraint Lewis-Han v Mary Yvonne Williams OBE [2025] UKUT 401 (LC)
Summary
The Upper Tribunal partially allowed an appeal about ownership of a driveway area.
At first instance, the First-tier Tribunal determined that the disputed land had been included in a conveyance, now lost, to the respondents, and rejected the appellants’ contention that they had acquired title to the land by adverse possession. Both parties provided further disclosure during the hearing itself, and further disclosure issues were pursued after the trial had concluded and the decision been issued.
The Upper Tribunal allowed the appeal on one ground, namely against the FTT’s conclusion on paper title ownership. As was apparent from the FTT’s reasons in refusing permission to appeal, that conclusion had been reached on the mistaken basis, shared by the parties, that the Land Registry had not had the lost conveyance available to it when preparing a title plan; that error undermined the soundness of the FTT’s conclusion.
However, the UT dismissed the other grounds of appeal. There was no basis for interfering with the FTT’s determination about whether or not the appellants had been in possession. Further, the additional disclosure would not have altered the conclusion, and not having been pressed as an issue earlier, was not a reason to re-open the decision.
Why it’s important
This case is a useful reminder of the circumstances in which an appellate court will, and will not, interfere with findings of fact made at first instance. It is also an illustration of the potential relevance of the reasons given in relation to permission to appeal to an appellate court’s understanding of the decision below.
----------------------------------------------------------------------------------------------------------------
Ashrafi v Belmont Green Finance Limited [2025] EWHC 3247 (Ch)
Summary
The High Court dismissed an appeal against a possession order.
The appellants, who were husband and wife, were the occupiers of a residential property. Unable to obtain sufficient borrowing themselves to finance the purchase of the property, they enlisted the help of the wife’s brother, who obtained a bridging loan, and then refinanced (with the appellants already in occupation) via a mortgage with the respondent bank. In so doing, the brother misled the bank: the mortgage was on buy to let terms prohibiting occupation by family members.
A separate dispute between the family members resulted in a determination that the appellants held the entire beneficial interest in the property. That determination caused the bank to become aware of the circumstances of the property’s occupation, and there were also outstanding arrears. The bank sought, and obtained, a money judgment and possession.
Mr Justice Adam Johnson dismissed all grounds of appeal:
- Applying the principle in Brocklesby v. Temperance Permanent BS [1895] AC 173, having enlisted the brother’s assistance in obtaining the mortgage, the appellants were precluded from asserting they had priority over the bank.
- The bank’s security interest had not merged in the money judgment; it was entitled to both remedies.
- The appellants were not ‘mortgagors’ for the purposes of s.36 Administration of Justice Act 1970, so it had not been necessary to consider whether or not they could repay within a reasonable time.
- A generic assertion of unconscionable conduct – which in any event was not established – was not a freestanding ground for resisting possession.
Why it’s important
This judgment is of note because of its consideration of the definition of ‘mortgagor’ in s.36 AJA 1970, on which there is little authority. Considering the matter from first principles, when determining whether the appellants were persons ‘deriving title under’ the brother, the Judge considered it relevant to ask what title the appellants were able to assert as against the lender. In this case, being precluded by the Brocklesby principle from claiming priority over the bank, it was difficult to see that the appellants had any relevant title at all. Further, they were not ‘entitled to redeem’: the arrangement was that they would indemnify the brother, not that they would deal with the bank.
Back to articles
